Pentagon Papers: Case Dismissed

I HAVE decided to declare a mistrial and grant the motion to dismiss." With these 13 terse words, Judge William Matthew Byrne Jr. ended one of the most extraordinary legal--and in many ways, illegal--proceedings in the history of American justice.

By his ruling, the judge cleared Daniel Ellsberg and Anthony J. Russo Jr., both of whom freely admitted that they had secretly copied and leaked the Pentagon papers, of eight charges of espionage, six of theft and one of conspiracy. But since the case had never reached the jury, the two were not declared innocent by acquittal, nor had they been vindicated by their defense based on the assertion of the people's right to know. Even so, the victory was so signal that as Byrne rose to leave the bench in U.S. district court in Los Angeles, the assemblage in the crowded courtroom rose, applauded and cheered him. Patricia Ellsberg rushed over to her stunned husband and asked plaintively: "Haven't you got a kiss for your girl?" (He had.) Defense Counsel Charles Nessen ostentatiously broke out a big cigar and lit it. The prosecution team filed out in tight-lipped silence. Later, a majority of the jurors said that they would have voted for acquittal if they had been given the chance.

Judge Byrne, 42, a blond and sporty bachelor who once directed President Nixon's Commission on Campus Unrest, came to his decision after 4 1/2 long months of trial. Not until its final weeks were the murky beginnings of the case disclosed. Perhaps as early as 1969, and certainly by early 1970, the FBI knew that Ellsberg, then a consultant with the Rand Corp. "think tank" in Santa Monica, Calif., was copying parts of the Pentagon papers at night on a Xerox machine in an advertising-agency office.

At about the same time, President Nixon became incensed by various news leaks and ordered the FBI to stop them. As the bureau's just-appointed director, William D. Ruckelshaus, now admits, the FBI failed in that mission; it did, however, set up a number of wiretaps without any court authorization. One of them was on the home phone of Morton Halperin, then a consultant for the National Security Council, and on that tap, the FBI heard some conversations by Ellsberg. Fully a year ago. Judge Byrne had demanded an account of all Government eavesdropping on Ellsberg, but Ruckelshaus disclosed the tap on Halperin only last week--and added the incredible news that all the tapes and logs of the overheard conversations had mysteriously disappeared from the files of both the FBI and the Department of Justice.

Valid Changes? All of these sensations--following the disclosures that the CIA had helped the Watergate raiders to break in to the offices of Ellsberg's former psychiatrist--took the trial far from its original purpose. The Government had been determined to prosecute Ellsberg and Russo as criminals. The defense was equally determined to raise the broadest legal and constitutional issues. Was a charge of espionage valid when the defendants had given no information to a foreign power? (Ellsberg had returned the actual papers to the Rand Corp. files.) Could theft be alleged when the culprits had stolen nothing but information? Could conspiracy be proved if, as many lawyers believe, the statute defining it is so loosely drawn as to be unconstitutional?

All these matters weighed heavily on Judge Byrne. Then, three weeks ago, the prospect that the case would end in a dismissal surfaced with Byrne's own disclosure that he had visited John D. Ehrlichman, who had offered him the directorship of the FBI, and that he had met President Nixon at the Western White House. The defense immediately demanded dismissal of the case. The judge refused, saying that he had declined to discuss the FBI offer with Ehrlichman and had done nothing improper.

As disclosure followed disclosure, the courtroom air became filled with defense cries of "taint" and motions for mistrial and dismissal, but Byrne hesitated. He was troubled because there were no very direct precedents to guide him. Indeed there could hardly be any, since both the charges and the revelations of the Government's interference and misconduct were unprecedented. Defense Counsel Leonard Boudin tried to cajole Byrne with the coy suggestion: "I'm hopeful that in future when I'm asked to cite a precedent, I'll be able to cite one made by Your Honor in this case."

Byrne had three basic alternatives: 1) declare a mistrial, which would expose the defendants to retrial before a new jury; 2) dismiss the indictments in such a way that the government could never again prosecute these defendants for the same alleged offenses (these two might be combined); or 3) send the case to the jury and decide later whether to throw out a possible guilty verdict if further investigation incriminated the Government still more deeply.

Only a Glimpse. When Byrne mounted the bench to announce his ruling, the courtroom was packed. The corridors were filled with pass holders who had been unable to squeeze in. With the jurors absent during procedural arguments, the jury box was crammed with newsmen. Byrne began briskly: "I am prepared to rule on the motion for dismissal."

First Byrne offered the defense a choice: Did it want to press for dismissal or take the risk of letting the case go to the jury for a final verdict? It took Boudin & Co. only a one-minute huddle to answer: "Dismissal." Byrne had obviously anticipated this and had the appropriate ruling prepared. He read it quickly but clearly. The Government, he noted dryly, had made an "extraordinary series of disclosures" regarding the activities of several agencies. He had tried to develop "all relevant information" about these activities, but "new information has produced new questions, and there remain more questions than answers."

Of the special investigative unit that White House officials had set up, and which burglarized Psychiatrist Lewis Fielding's office, Byrne said: "We may have been given only a glimpse of what this special unit did, but what we know is more than disquieting." As for the CIA's assistance, he said that the agency was "presumably acting beyond its statutory authority and at the request of the White House."

"No investigation is likely to provide satisfactory answers," he said, "where improper Government conduct has been shielded so long from public view"--and where the files are missing or have been destroyed. "It is the defendants' rights and the effects on this case that are paramount," Byrne declared, "and each passing day indicates that the investigation is further from completion as the jury waits."

The charges against Ellsberg and Russo raised "serious factual and legal issues," and Byrne said he would have liked these to go the full course--meaning a jury verdict and possibly appeals to higher courts. But, he concluded, "the conduct of the Government precludes the fair, dispassionate resolution of these issues by a jury. The totality of the circumstances of this case offends a 'sense of justice.' " Hence he ordered a mistrial and dismissed the indictments.

One of the few precedent cases that Byrne could cite was one that reached the Supreme Court in 1952, in which Justice Felix Frankfurter established the doctrine of dismissal if Government action "shocks the conscience of civilized men." Byrne, a civilized man, was plainly shocked.

When the courtroom applause died, there remained the unresolved questions about the legality of the Government's charges--and of Ellsberg's actions in taking and releasing the documents. In the corridors, an ugly suspicion was voiced by defense counsel: perhaps the Administration had deliberately flunked its last assignment from Byrne, about the Halperin wiretap, because it was being increasingly embarrassed by the disclosures that Byrne was forcing. By failing to meet Byrne's demands, the Administration had given him good reason for dismissing the case and had thus forestalled any further investigation that he might order. It had thereby plugged the leaks of Watergate West.

Ellsberg and Russo plan to sue Government officials for $2,000,000 in damages and expenses (their legal costs already total $900,000). For this process, they threaten to subpoena the President himself. In that, they are not likely to succeed, but the Pentagon papers trial, in another guise, may be in the courts and the headlines for months or years to come.

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